Citation Nr: 24005299 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 19-25 451 DATE: February 1, 2024 ORDER Entitlement to service connection for a respiratory disability, to include asthma, is denied. FINDING OF FACT The evidence shows that a respiratory disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, to include as due to asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability due to asbestos exposure have not been met. 38 U.S.C. §§ 1110, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2023 and was remanded to obtain a VA examination opinion, which has been completed. Entitlement to service connection for a respiratory disability. The Veteran contends that he has a respiratory disability that it is related to service, to include as due to asbestos exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1113; 38 C.F.R. § 3.303. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). The Veteran contends that his diagnosed respiratory disability was caused by his in-service exposure to asbestos. The Veteran has submitted private treatment records indicating he has a current asthma diagnosis. Initially, the Board notes there is no date on the medical document noting frequent sinusitis attacks at the age of 18 in the service treatment records. Therefore, because the Veteran's asthma was not "noted" on his entrance onto active duty, the Board finds that presumption of soundness attaches to this claim unless there is clear and unmistakable evidence of it preexisting military service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). As to whether there is clear and unmistakable evidence of a respiratory disability preexisting military service, the Veteran's November 1968 first enlistment examination and November 1969 active-duty examination are both silent for a respiratory disability. His exit examination is also silent concerning symptoms or a diagnosis for a respiratory disability. Therefore, the Board finds that there is not clear and unmistakable evidence that the Veteran's respiratory disability preexisted military service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Accordingly, the Board finds that presumption of soundness attaches to this claim. Id. The remaining question before the Board is whether a current respiratory disability is due the Veteran's military service. 38 U.S.C. §§ 1110, 1113; 38 C.F.R. § 3.303. Initially, as to current disabilities, the Board notes that there is no dispute that the Veteran has a current diagnosis of asthma. See December 2023 VA Examination. VA has also conceded the Veteran's ship exposure to asbestos based on his Navy military occupational specialty of electrical repairman. See September 2023 Toxic Exposure Risk Activity Memorandum. With a current disability and in-service exposure conceded, the evidence still must show a causal relationship existing between his current disability and the in-service exposure more than 50 years ago. A September 2023 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted a current diagnosis of asthma and a lung nodule. In reaching their rationale, the examiner stated the Veteran's Form 89 did not have a date and noted the Veteran suffered from frequent sinusitis attacks at age 18. All other service treatment records were silent. Post-service treatment records from August 2013 noted the Veteran had atopic dermatitis with a history of smoking (quit in 1971), asthma, and allergic rhinitis. The examiner stated that the Veteran suffered from sinusitis prior to service. Sinusitis, environmental triggers, and tobacco smoke are some of the most common triggers of asthma. Asthma is a condition of acute, fully reversible airway inflammation, often following exposure to an environmental trigger. The pathological process begins with the inhalation of an irritant or allergen, which then, due to bronchial hypersensitivity, leads to airway inflammation and an increase in mucus production. This leads to a significant increase in airway resistance, which is most pronounced on expiration. It was noted that there is no scientific literature showing that asbestos exposure causes asthma. An addendum opinion was obtained in December 2023. The examiner stated there is no scholarly medical literature showing asbestos as a causative factor for asthma. The Veteran had a history of chronic sinusitis (reported as frequent attacks of sinusitis) prior to service. This history, combined with tobacco smoke, caused the Veteran's asthma. The examiner also opined that claimed condition is less likely than not caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In reaching this rationale, the examiner stated there are risk factors outside of military service (smoking history, history of chronic sinusitis) that far outweigh the factors identified in the TERA. Additionally, there is no scholarly medical literature showing asbestos as a causative factor for asthma. While the examiner stated that the Veteran suffered sinusitis prior to service, the examiner explained in detail that there is no scientific literature showing that asbestos exposure causes asthma. The Board cannot ignore the fact the Veteran's first diagnosis of a respiratory disability was made in 2013, without symptomatology for over 40 years after his last possible asbestos exposure in service, in 1971. See August 2013 Private Treatment Letter. Simply stated, the service and post-service treatment records provide evidence against the claim, indicating a problem that began many years after service with no connection to service. In the Veteran's case, he was exposed to asbestos in service and was considered to have normal lungs both upon examination and separation from active service and for many, many years thereafter. To draw an inference between the Veteran getting exposed to asbestos in service, to a diagnosis of asthma more than 40 years later, is one the Board cannot make. (Continued on the next page) ? While it is clear that the Veteran suffers from a respiratory disability, the evidence does not establish a link between this disability and his active service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim, that doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cochran, Laura The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.